Legislating for human dignity without being misty-eyed

The Manus Island deal has been thrown into disarray, with the PNG Supreme Court declaring the detention centre on the island to be unconstitutional.

The decision was celebrated among refugee advocates who have consistently maintained that the arrangement was at best unlawful and at worst, torture.

In response, Prime Minister Malcolm Turnbull has instructed Australians not to get 'misty-eyed' about our asylum seeker policy. There would be no changes, he said, to our firm commitment to protect our borders thereby saving thousands of lives that would otherwise be lost at sea.

The PM's choice of words reflects something that has troubled me for some time. Frequently, broad community discourse among those who object to Australia's treatment of asylum seekers is an appeal to politicians' compassion. This language indicates an emotional, values-based response to the admittedly complex and global issue of asylum seekers, albeit an entirely rational one.

Further, it calls on politicians' personal value systems rather than using language more familiar to policy-makers. (I distinguish here calls for greater compassion among the voting public, which is an important ingredient in galvanising public support for asylum seekers.)

I wonder if the language of compassion makes it easier for parliamentarians to dismiss opposition to asylum seekers, in the way the PM did in his statement. 'Misty-eyed' invokes an emotional or sentimental state of being. The PM is saying that 'emotional' arguments will be ignored in favour of hard-nosed, rational decision-making.

In his statement, the PM invoked the historical 'logic' of 'binary opposites' pursuant to which the world can be definitively explained in terms of dualities: strong and weak; good and bad; intellect and emotion. In each pairing, one word signifies a positive attribute, and the other a negative.

The historical privilege of so-called positive attributes is no longer so certain. The privilege traditionally attached to all that is 'masculine' and 'rational' has ceded ground to the equally valuable 'feminine' and 'compassionate'. The strategy of binary opposites still holds sway however, as indicated by the PM's comment.

"Although limited, the law does provide a framework for compassionate responses to human dignity."

Because we continue to think in binary opposites, it still has currency and in this context I have often wondered at the likely success of entreaties to compassion for asylum seekers. This is not because I do not personally feel compassion for these people. And it is not because I do not believe that it is morally correct to show compassion, including through government policy.

Rather my response is partly a factor of my training as a lawyer. It has historically been usual to train lawyers to avoid emotion, instead to rely on principles and rules of law. Through my legal eyes therefore, I can see little hope for appeals to politicians to show compassion. Indeed, they already believe that they are compassionate. My conditioned response instead is to appeal to law.

Although limited, the law does however provide a framework for compassionate responses to humanity, and to human dignity. Sometimes this can be found in the body of case law built up through centuries in the English tradition, and known as common law. More frequently these days however, it is found in human rights law settled internationally and (at least sometimes) included into our domestic legislation.

Some might say that international law has no teeth. Indeed it may have limited, if any, direct application for any particular detainee. But it does help to establish global norms for governments and how they treat people. Those norms invest in each person inalienable dignity and require treatment of people that upholds that dignity.

While this law, and these norms, can be traced to 'emotions' or 'morality' or other such 'soft' frames of thought, they nonetheless provide us with language familiar to government and to governance. This language can be a useful tool in communicating our demands that government uphold the dignity of each human. And through upholding dignity, we can exercise compassion.

It is trite to say that the world can do with more compassion and not less, but it remains important in terms of promoting our humanity, to aspire to a more compassionate society. One way of communicating the value of compassion while seeking to avoid the charge of 'misty-eyed' or 'soft' thinking about asylum seekers, is to call for government to fulfil its responsibilities to human dignity.

Government must be held to account not necessarily for a lack of compassion, but certainly for the state-sponsored diminishment of human dignity that occurs through our border protection policies.

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Asking people to be more compassionate is ... sort of abstract and impersonal. To remind people of the golden rule: treat others in the way you would like to be treated, hits home. We respond to the reciprocal bargain (karma, sowing and reaping, what goes around comes around etc.): if I were forced to flee my home, I wouldn't like to be locked up indefinitely on Manus Island, so I can't allow others to be. Perhaps it's a selfish response, but I suspect it would be all the more effective for it!Russell | 29 April 2016

From the time Howard won elections with the Tampa and 'children overboard' issues, major party politicians have been playing politics with the lives of desperate asylum seekers, rather than looking for humane and compassionate solutions.
If Australia were to offer about 10,000 places a year to asylum seekers in Indonesian camps and a few thousand places each to Malaysia and Thailand, there would be an incentive for asylum seekers to come to Australia safely this way rather than to pay “people smugglers” and get on leaky boats. Indonesia may then well accept Australia’s turning back the boats. The reason people risk coming by boat is because there is no other alternative, so let us create alternatives that we could well cope with.
First we need to remove this Government, so entrenched in its inhumanity, and then put unrelenting pressure on Labor to start acting humanely and treating asylum seekers with compassion, not barbarity. I really think Dutton and Turnbull are both beyond redemption on this issue. A heavy vote for the Greens and several humane independents this election is a must to help turn the political tide away from barbarity and towards humanity and compassion for desperate asylum seekers.Grant Allen | 29 April 2016

Interesting article and it has long dismayed me that refugee advocates call for compassion when it is clear that those in government and those who agree with their policies are very afraid of compassion. John Howard promulgated the line that these supposedly opportunistic people think we are a "soft touch". People generally have a fear that if they open their hearts where will it end? Ending these brutal policies requires the recognition that this is a global issue, it is real and it won't go away by shutting the door. We need the rule of law to prevail, not changing laws to suit the circumstance as has happened. We need honesty and integrity in the way we as a nation deal with this probem. Really I think it is about our own dignity. It isn't so much that we are depriving asylum seekers of dignity but that we refuse them the possibility of hope. Human beings cannot survive without hope, nor can civilisations. This issue needs to re-erupt now with an election looming so that we can have a contest as to which party can be intelligently courageous about the huge numbers of displaced people in the world. Cheryl | 29 April 2016

The asylum seeker who set himself alight on Nauru died today in a Brisbane hospital. BUT SOME HARD-HEARTED POLITICIANS ARE YET TO CHANGE THEIR CRUEL POLICIES.
I do like the compassionate immigration policies of the Australian Greens, who would immediately close the offshore detention centres.
The Greens intend to save $2.9 billion by shutting these detention camps and abolishing the practice of offshore detention.
Their policy is to give $500 million to assessment and support organisations in our region to speed up the process and give people access to education and work rights while they wait. The Greens plan to abolish temporary protection visas and provide permanent protection to people seeking safety.
The Greens will also introduce a 30 day time limit for people held in on-shore immigration detention.
To provide safety for 50,000 people, the Greens will increase the number of people Australia helps from 13,750 to 50,000 per year; fairly and efficiently assess people’s refugee claims where they are waiting and establish a Skilled Refugee visa program for 10,000 people. THAT'S FAIR AND COMPASSIONATE!
Let the coming election be a moment of truth for major party politicians. AND LET US NOT CONTINUE TO BE A PARIAH STATE!Grant Allen | 29 April 2016

There is an elephant in the room. An elephant in the room is a fact no-one wants to face up to.
In this case it is the conclusion that, to the extent that the government’s – and the opposition’s - policy of boat refugee treatment panders to majority fear, the majority of Australians are xenophobic and prepared to see inhumane treatment inflicted on people they don’t know and wouldn’t accept personally.
This is a terrible conclusion. It’s a terrible elephant. It’s something we may have to be personally ashamed of.
I think the time for pussy-footing around is over: we are contemptible in the eyes of the world and Peter Dutton and Malcolm Turnbull join a long conga-line of cruel inhumane or mercenary people. but if they are right in their political calculations, they are not the worst, and the blame lies with us, the Australian people.
Stephen K | 29 April 2016

Grant is so right. First we have to remove this government - no change at all is possible with he likes of Turnbull, Dutton, and Morrison supported by Abbott, Bernardi, Sukkar and the rest of the far ought back-benchers. Then the ALP has to be denied a working majority in the Senate by returning a sufficient number of Greens and humane cross-benchers, and by voting below the line in the Senate so as to be able to preference ALP senators according to their views and record on these an other issues rather than following the ticket according to factional deals. But Kate is also right in that we need to appeal to those matters that are of concern to politicians, such as the law, dignity and so forth. One possible area to focus on is the collateral effects of current policies on the (perfectly rational) alienation and radicalisation of both our own citizens and our those detained. If prisons are often schools for criminals, imagine what our detention centres are for creating and training future 'terrorists'.Ginger Meggs | 30 April 2016

The release of the new film ‘CHASING ASYLUM’ will add to the momentum already gained by compassionate, rather than 'misty-eyed', groups including LOVE MAKES A WAY and the CHURCHES OFFERING SANCTUARY TO ASYLUM SEEKERS. Look out Turnbull, Dutton, Shorten and Marles! You can’t fool all of the people all of the time!Grant Allen | 01 May 2016

Abraham Lincoln once said that he would like those who promoted slavery to experience what it was like. Similarly, those politicians who promote the illegal and inhumane off-shore detention of genuine asylum seekers would benefit from closer contact with them, rather than sitting in their cosy retreats from reality, and shedding crocodile tears about drownings at sea when there are plainly many other means of pulling our weight without resorting to inhumane practices.Robert Liddy | 02 May 2016

The government continues to hide behind the line : "we do want to have thousands drown at sea", they ignore blatantly that the offshore refugees are now not submitted to the risk of dying but they are assured of a future of PTSD, loss of a belief in humanity, great emotional continuing suffering and another generation of poor parenting reflecting on the next generation. Hallo Australia wake up Fran | 02 May 2016

Kate, thank you for an excellent article. I had never realised how important semantics are in advocating for social justice for asylum seekers. An eye opener. Kind regards, ChrisChris Vincent | 02 May 2016

Kate, thank you for a fascinating and thought-provoking piece.
I think that politicians are being disingenuous here. As Grant, Cheryl and Stephen note, they have played to emotion (fear) in making the issue of honouring Australia's legal commitments so toxic.
At the same time, I think you are spot on in your diagnosis of human rights norms as having an emotional basis. Their origins are generally traced to Mediaeval concepts of "natural law". I think there is much to be said for the argument that Thomas Aquinas (who did most to get natural law theory up and running in the West) had empathy (what he calls "feeling for and awareness what is right") in mind as a major basis for natural law.
So yes, I agree that legal arguments are important (like you, as a lawyer I would say that!) but I think that it's also important to call the politicians on their hypocritical treatment of emotion.Justin Glyn SJ | 02 May 2016

Bravo!Annabel | 02 May 2016

While I agree with Kate's argument, I am not hopeful that the Australian government, opposition or the majority of the Australian electorate would care much about international law when it comes to asylum seekers who arrive by boat. It has been reported across a wide range of media that our policy and practice is contrary to international law on asylum seekers. But this has not brought any change in policy or practice, whichever alternative government is in power. Government and opposition expressions of concern for people dying at sea in attempting to reach Australia by boat are proven to be crocodile tears by the way long-term detention is continued by both parties.
No matter how inhumane the conditions of that detention, neither party will risk losing support of the electorate by demonstrating respect for international law or Australia's international reputation, any more than for compassion.Ian Fraser | 02 May 2016

thanks, Kate - a beaut article. I certainly don't disagree with your call for using the language of international law. But there is another complicating issue here i.e. politicians' claim to have 'saved lives that would otherwise be lost at sea' is a claim for their own [repellent] policies as compassionate. Turnbull et al are trying to have it both ways by accusing opponents of being 'misty-eyed' while claiming to be preserving the lives of asylum seekers. Another rhetorical tactic that could be used to pressure labour and the greens is comparison with other times and places i.e. Australia's refugee problem is minuscule compared with Europe's; Australia is one of the richest countries in the world; Australia took refugees who were seen as 'other' in the 1970s and they have made a great contribution. There is xenophobia at play here but like all political emotions its political power is not static - it can be countered as the relative success of Australia's immigration policy since the end of the second world war suggests. Anne | 02 May 2016

Stephen K., you are absolutely correct. The shallowness of the average Australian, when dealing with this problem is exceptional, and light years from their self perceptionDeena Bennett | 02 May 2016

If indeed the meaning of the word dignity is "true worth" (from which a number of other derivations of usage come eg the adjective "dignified"), legislating for human dignity in advanced Western countries must be one of the great oxymorons. How can we expect that legislators will pay any heed to the worth of asylum seekers, often arriving without due regard for the rules that apply to everyone else entering a foreign country, when they pay little heed to the human dignity of their own disadvantaged, their own indigenous peoples, human life itself in the legislative approval of the destruction of the most innocent and dependent of normal human lives in our own society, and when many of our own citizens have no respect or compassion for our fellow neighbours or indeed for themselves in many instances. Western society is indeed very seriously ill. When it was the essence of good health. the Law was the prescriptor of that good health. Now the law as wonderfully demonstrated in States like Victoria and Tasmania is the very destroyer of all that human dignity means, following hard on the heels of the United States , much of ex-Catholic Europe and sadly of the United Nations assembly. We are living in a society of rapid decline and no degree of drum beating and application of bandaid solutions will change that unless we again see the image of god rather than the image of the wise human being, Homo sapiens, in our fellow men regardless of religion , race, age and human failings. Wouldn't advise holding our breaths though. The lust for money , power and personal freedoms without the shackles of ordered society has been allowed to run rampant and will continue to destroy our society. LAW - the new court jester - take a bow! john frawley | 02 May 2016

A very discerning and important article. Whether or not our politicians really are compassionate, and whether the majority of Australians really know the facts, name-calling is a completely ineffective way of changing government policy. Let's instead use the languages of law and ethics, and appeal to the stated principles of the ruling parties. with regard to this last point, let's say "Yes, we agree our borders must be protected; we agree that we must do what we can to protect human lives - now find a way to do both without further endangering the lives of those who have already arrived here while you've been trying to find this path". Joan Seymour | 02 May 2016

Interesting that the 'elephant in the room' is xenophobia. Could elephant in the room in fact be the silent majority of Australians that lobbyists and the media ignore. Australia is one of the few countries that accepts relatively large numbers of refugees. We are not contemptible in the eyes of the world but think so only in our own eyes. We are faced with the dilemma that our future generations will experience the problems Europe has today. The government has a responsibility, we have a responsibility, to our children. There needs to be a solution, but it has to be a global solution, to maintain the dignity of people all over the world. Instead of opening our doors all the time, Australia should be active in strongly supporting the end of conflicts that displace people. Our foreign policy should be clear that we will do our part but the other signatories of the Convention and the Protocol also have responsibility to take these refugees. The UNHCR should not burden the willing to do more and more but take the hard road to open more doors. Refugees should not have a choice on where they want to go. Signatories will have to provide a safe environment to the refugees. It is a global issue and all countries, through the UN, must contribute to the supporting those in need of refuge.DonaldD | 02 May 2016

Helpful Kate. Thank you.iain gow | 02 May 2016

You make some great points, Kate. Thank you. The other 'words' I'd like to see used in this debate much more often is 'dollars 'and 'economics'. We are spending millions on ineffective and barbaric policies that will result in the need for our community to spend millions more in addressing the mental health damage we are causing. Those campaigning against domestic violence and similar evils often use the economic costs to the community of ineffective policies to strengthen their arguments. Vivien Holmes | 02 May 2016

My problem with the current Australian Government is that it conveniently chooses to disregard law when it suits them to do so. Consequently we disregard our obligations to asylum seekers by declaring them as illegally seeking entry into Australia when they clearly have a legal right to do so in international law. A second issue I have with respect to law is the ease with which our law is changed eg the declaration of an exclusion area foe certain Australian territories for the purpose of denying asylum seekers their internationally recognised legal rights. So Kate, while I have respect for law, I have lost all respect for Australian Governments that lack the moral courage to respect the law rather than bypass it whenever it suits them. Their attempt to justify this by use of teleological argument I find absolutely abhorrent. Respect for human dignity demands justice.Ern Azzopardi | 02 May 2016

It might be opportune to point out the influence of religions in both creating the flood of refugees and the poor reception they receive in many countries. It is not the official teachings of the religions that are at fault, but the lack of maturity of the religions. The assumption that because they have found one path, geared to their degree of development and social situation, tends to make them think that theirs is the only such path, and that others are either wrong or perverse. All religions need to recognise that God is Constant and Universal, calling everyone by Paths adapted to their conditioning.
It is difficult to accept that one's religion is only one of many ways of responding to God's Call, but reflecting that if 'we' had been brought up from birth in another religion we also would accept it as the only true one. Robert Liddy | 03 May 2016

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